New tougher driving legislation breaches the Bill of Rights and should be modified, the attorney-general warns.
Transport Minister Gerry Brownlee last month announced plans to amend the Land Transport Act, lowering the legal drinking limit from 400 micrograms per litre of breath to 250 micrograms.
Those caught between the existing limit and the new one would be subject to instant fines and demerit points for a first offence, and would not lose their licences.
Parliament is today debating the legislation for the first time. It is expected to pass at first reading, which would lead to it being referred to a select committee. Labour has promised to support the legislation at least initially.
But in his report on the Land Transport Amendment Bill, Attorney-General Chris Finlayson has warned that the bill as drafted breached the presumption of innocence principle, and could not be justified.
The issue relates to the ability to challenge evidential breath tests.
Those found in evidential breath tests to be over the limits can now request a blood test within 10 minutes of being advised of the result.
However, under the new legislation, those caught in the window between 250 micrograms and 400 micrograms would no longer be entitled to demand a blood test.
Where a blood test is not demanded, the validity of the breath test cannot then be challenged in court.
Finlayson said the right to a blood test had been identified by the courts "as an important safeguard against errors that may arise from breath tests".
His report found that the breach of the Bill of Rights could not be justified by its connection to the intent of the legislation, was more than was reasonably necessary, or was not proportionate to the objective.
Blood tests took time and added complexity to the road safety regime, adding an estimated $400,000 in costs each year. However, the Ministry of Transport had warned that the amendment could lead to more litigation and defended hearings, Finlayson found.
The lower costs for police would likely be more than offset by added costs for other government agencies.
"There is real risk that the justice system as a whole may see no efficiency gains from removing the right to elect a blood test in relation to the new lower limit.
"It therefore appears doubtful that the limitation on the right to be presumed innocent is rationally connected to the bill's objective."
Finlayson said Canadian law could provide an alternative, with its criminal code allowing for the test to be presumptively valid, but not conclusively so, and subject to legal challenge.
However, this would apply only in limited circumstances, and explicitly exclude the accounts of bystanders.
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